Brexit

[Alan Klein]

Several politicians have accidentally used the word "breakfast" instead of "Brexit", one several times in a single speech.

No, that's not right. See the whole judgment, or a useful summary here.

I don't think there's any doubt that it will be appealed, and your terminology ("come to heel" - what a preposterous phrase to use to describe a complex argument) presupposes the outcome.

I heard that interview. I think the noble Lord is confusing intent with what was actually done. Whatever the drafters might have meant to include in the treaty, the actual terms of Article 50 seem to me to be crystal clear.

Article 50 – Treaty on European Union (TEU)

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49. [emphasis supplied]

Paragraph 3 makes it quite clear that notice is irrevocable: it can at most be delayed ("extend this period") and then only by unanimous decision.

Jeremy

I'm not British.  But it seems that once the British court ruled that Parliament must decide, any actions already taken to withdraw from the EU is null and void due to item #1 since the Constitution was not followed.  The two years rule in #3 is irrelevant.  In effect, the EU has never been notified that Britain wants to withdraw from the EU because the Prime Minister's notification was not valid since it was unconstitutional given.  Frankly you're back to square one as far as the EU is concerned. They were never notified.

This is similar with international treaties in my America.  The American President can make all the deals and agreements he wants with foreign powers.  But since our Constitution requires the Senate to provide "advice and consent", none of his personal. unilateral agreements are valid and enforceable. 

[pegelli]

I'm not British.  But it seems that once the British court ruled that Parliament must decide, any actions already taken to withdraw from the EU is null and void due to item #1 since the Constitution was not followed.  The two years rule in #3 is irrelevant.  In effect, the EU has never been notified that Britain wants to withdraw from the EU because the Prime Minister's notification was not valid since it was unconstitutional given.  Frankly you're back to square one as far as the EU is concerned. They were never notified.

Alan, one small detail, the PM has not notified the EU yet, she was planning to do that in March 2017. Now she can only do that after she has the vote in parliament to approve the notification or if the government wins the appeal. So there is nothing to be nullified, because nothing happened yet.

[Alan Klein]

Pieter,  I understand.  Same thing.  The EU has not been notified that Britain is exiting..  So Article 50 Par. 1 still applies.  It takes an act of Parliament. The British people's referendum doesn't count and the relationship of Britain with the EU is unchanged. 

Interestingly, America doesn't  have referendums on a national basis at all.  There's no legal allowance for them.  On the other hand. you will see referendums in many of the States as each is sovereign.    But that would apply only to local State matters as States cannot constitutionally enter into treaties.  That's up to the national government in Washington DC. 

[eronald]

I never knew the UK had a constitution.  Absent a well known document with established interpretation, it seems logical that one would need to ask the Law Lords to hand down a ruling.

I think this situation was predictable - there was no way the government could escape the legal challenge process. May would have been aware from day one as she used to be Home Secretary - and her Head Mandarin of 10 Downing Street would have compiled a brief.

Edmund

[pegelli]

Pieter,  I understand.  Same thing.  The EU has not been notified that Britain is exiting..  So Article 50 Par. 1 still applies.  It takes an act of Parliament. The British people's referendum doesn't count and the relationship of Britain with the EU is unchanged. 

I agree the referendum doesn't "legally" count, but most politicians have said to respect the vote from it. Unless the government wins the last appeal it will indeed take an act of parliament to be able to notify the EU under article 50. My advice to the government would be to just get on with it and stop dragging their feet.

I find it amazing that the Brexit promoters wanted to get more power into the GB parliament and now that they need the same parliament to start the process they don't trust them and throw an emotional fit. 

[stamper]

Dirt digging from the Daily Mail. Highlighting the sexuality of one of the judges and stating that their preferences for leaving Europe or staying coloured their thinking when making their decision. Also questioning why they got involved at all. At the end of the day there won't be a departure because I don't think the Tory party really want one.

[Manoli]

Oh, but they do, Stamper, they do.

But whether you should brand all conservatives with the much tainted brush is another question.  Stephen Phillips resigned in protest because he could no longer abide May's 'tyrranical' approach to parliamentary scrutiny of Brexit (amongst other issues) and because 'he can no longer live with being labelled a Tory' (or as a friend of his put it 'because they've morphed into UKIP-lite').

After 24 hours of odious propagandist news headlines and vicious media attacks on judges and the rule of law, the PM and Justice Secretary (Lynn Truss) , rather than defend the independence of our judiciary, remain totally silent. The PM's spokesperson refused to comment on the newspaper coverage but did say that the PM 'doesn't think the British judiciary is being undermined'.  (*)

Anyway, news now comes that the Welsh government’s counsel general said it would formally join the complainants’ side in the supreme court case, and Scottish government sources say that Nicola Sturgeon is also considering joining the action.

Edit:(*)
https://thesecretbarrister.com/2016/11/04/liz-truss-is-unfit-for-office-and-should-resign/

At the end of the day there won't be a departure because I don't think the Tory party really want one.

[Chairman Bill]

Brexit is going to happen. May won't act to undermine her own position, and to not deliver Brexit would have the Tory party membership up in arms, demanding her head. Of course, if she stretches the process out long enough, half of them will be dead anyway, but even then she's got the swivel-eyed loons on the right of her party to contend with. Probably best to just get it over & done with. The other concern is that for all their blather about democracy, the will of the people & UK sovereignty, the Brexiteers actually don't give a stuff about any of it, unless it goes their way. If they were really interested in democracy & the will of the people, they wouldn't have lied through their teeth in the referendum campaigning, and wouldn't oppose a second referendum at some point. If they truly cared about UK laws & UK sovereignty, we wouldn't see this idiotic reaction to the court ruling over Article 50. No, what worries politicians of all stripes, is how the racists & xenophobes would react to seeing the Leave decision overturned. The Daily Hatemail, Express, and The Scum would be calling for blood, with torches & pitchforks, marching on Parliament, and the likes of Britain First & the EDL lynching foreigners in the street.

[Slobodan Blagojevic]

...I find it amazing that the Brexit promoters wanted to get more power into the GB parliament and now that they need the same parliament to start the process they don't trust them and throw an emotional fit. 

Who isn't familiar with a situation where your wife asks you which one to wear, A or B, and you try your best and come up with "Honey, you'd look absolutely ravishing in A," only to hear "Thanks darling, I think I'll go with the B then." Then again, you'd end up in bed that night and all will be good and forgiven.

By asking for a referendum, didn't the parliament admit tacitly that they are unable to resolve the issue themselves, that it is above their pay grade? It is not about "not trusting" the parliament, but helping it when the parliament admited they don't know what to do. After all, people form the parliament, not the other way around, at least on this side of the ocean. Then again, Brits are still the Queen'a subjects, so perhaps asking her might help? 

[MarkJohnson]

Brexit is going to happen. May won't act to undermine her own position, and to not deliver Brexit would have the Tory party membership up in arms, demanding her head. Of course, if she stretches the process out long enough, half of them will be dead anyway, but even then she's got the swivel-eyed loons on the right of her party to contend with. Probably best to just get it over & done with. The other concern is that for all their blather about democracy, the will of the people & UK sovereignty, the Brexiteers actually don't give a stuff about any of it, unless it goes their way. If they were really interested in democracy & the will of the people, they wouldn't have lied through their teeth in the referendum campaigning, and wouldn't oppose a second referendum at some point. If they truly cared about UK laws & UK sovereignty, we wouldn't see this idiotic reaction to the court ruling over Article 50. No, what worries politicians of all stripes, is how the racists & xenophobes would react to seeing the Leave decision overturned. The Daily Hatemail, Express, and The Scum would be calling for blood, with torches & pitchforks, marching on Parliament, and the likes of Britain First & the EDL lynching foreigners in the street.

That is very well said, Chairman Bill, I like your turn of phrase but I am all for throwing as many spanners in these particular works as humanly possible.

[Slobodan Blagojevic]

Don't you just love it how people think that only the other side lies, while theirs is a paragon of truth? That the other side are the deplorables with a lizard brain, while they are the ones with a sensible, human one?

[Rob C]

No Slobodan, Bill, above, has it about right. The mainstream politicians didn't, for a moment, believe there was a will to Brexit.

I am starting to fear that the final result will indeed be an exit, and within a few years we will find ourselves in much the same state as the US: citizens will start to arm themselves, legally or otherwise, for the simple reason that the rule of law will become pretty irrelevant, and so will the will or ability of the police to control the lunatics. We have aways had them, but formerly they lacked a focus, being fatally flawed from unity by left or right politics: now, they have one, backed by the press. Wait untill the current Turkish model of democracy becomes the norm. Dictator on one side, the mob on the other, both singing the same song. The last guy out won't even find a working light switch.

Rob

[Slobodan Blagojevic]

... within a few years we will find ourselves in much the same state as the US: citizens will start to arm themselves, legally or otherwise, for the simple reason that the rule of law will become pretty irrelevant, and so will the will or ability of the police to control the lunatics...

Citizens arm themselves when their government wages a war on police, not criminals; tolerates, stimulates and awards illegal activities and even provides sanctuaries for it, hoping the changed demographics they bribed with benefits will keep them in power.

[pegelli]

By asking for a referendum, didn't the parliament admit tacitly that they are unable to resolve the issue themselves, that it is above their pay grade?

Don't think so, if they thought it was "above their pay grade" as you call it they would have passed a bill for a binding referendum. However they didn't. They passed a bill for an advisory referendum. It's now up to them to listen to the advice (or not  ).

[Chairman Bill]

I am all for throwing as many spanners in these particular works as humanly possible.

Oh, absolutely

[stamper]

I think that the judgement will secretly be welcomed by a lot of Tories because it gives them a chance to step back from the brink. The looney right will be upset but that will be fine. The opposition is quite formidable and they will be joined by the waverers who are seeing the problems that has arisen. My hunch is that Brexit will become derailed.

[Slobodan Blagojevic]

.... It's now up to them to listen to the advice (or not  ).

Hence my marital anecdote. Except no sex to make up. Then again, one side will end up screwed anyway 

[pegelli]

Except no sex to make up.

I'm not so sure of that either 

[Jeremy Roussak]

Jeremy,

Unless there's hidden meaning in Mancunian dialect, 'come to heel' means 'a person or organisation agreeing to obey, usually because they have been forcefully persuaded to do so.'  - at least according to my understanding and that of the Cambridge University Press.

So thank you for your bombastic interjection but I'll stick with the generally understood implications of the phrase and hold that it is entirely appropriate in the current context.

It may be that English is not your first language. The phrase "come to heel" is used to indicate that a master has controlled an unruly dog. It would not be used other than with the intention of giving offence. It is wildly inappropriate in this context.

In so far as you suggest the argument is a complex one - the argument may have been, but the judgement is not. The decision is detailed and thorough, the LCJ even went so far as to describe the Government's position as 'baffling' during the proceedings and the court held the government's case to be so weak and 'flawed at a basic level' that it judged it untenable, irrespective of the challenge of the claimants.

The judgment is 111 paragraphs long. It repays close reading. It is "simple" only in the minds of journalists and those who have not troubled to think about it. I have frequently found my initial submissions described in terms such as "baffling" by judges who, after listening to my arguments, have found for me. Interim comments such as that are part of the cut and thrust of argument.

Jeremy

[Jeremy Roussak]

My bolding of text. The referendum was advisory, and our constitution requires Parliament to make the final decision. I'm not sure what part of this is bothering some people, but the Daily Hatemail & Daily Express are apoplectic with rage, spitting out their collective dummy, throwing toys out of the playpen & scweaming and scweaming.

I couldn't agree more about the press, but I expect nothing better of journalists on such rags. The argument about Parliament is somewhat more nuanced, however.

Jeremy